Federal Court of Australia

Monks v Pieman Resources Pty Ltd [2025] FCAFC 121

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal dated 11 February 2025 is dismissed.

2.    The applicants are to pay the costs of the respondents, as taxed or agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

A.     Introduction

1    This is an application for leave to appeal and, if leave is granted, an appeal from the orders of a judge of this Court made on 30 January 2025 entering default judgment against the defendants. The primary judge pronounced brief reasons on the transcript on that date and subsequently published formal written reasons on 17 February 2025: Pieman Resources Pty Ltd v Monks [2025] FCA 88 (Primary Judgment or PJ).

2    In these reasons for judgment, the plaintiffs in the proceeding before the primary judge are referred to as the respondents, and the defendants in the proceeding before the primary judge are referred to as the applicants.

3    The applicants submit that this is a classic case of a House v R (1936) 55 CLR 499 (Dixon, Evatt and McTiernan JJ) discretionary error: the evaluative exercise undertaken by the primary judge fundamentally miscarried, the primary judge treated delay as dispositive of the application, the case presents an opportunity to re-affirm the nature of “case management as judicial craft, not procedural algorithm”, and judgment in the proceeding should not have been entered summarily in the reasonable exercise of the discretion.

4    For the reasons that follow, we do not accept that leave to appeal should be granted to the applicants.

B.     Background facts

5    On 18 July 2024, the respondents commenced the proceeding. The respondents sought damages from the applicants for breaches of their duties as directors of the respondent companies. Those duties were identified as being, variously, directors’ duties, fiduciary duties and statutory duties under s 180, s 181 and s 182 of the Corporations Act 2001 (Cth). The conduct of the applicants giving rising to the alleged breaches of duties was, in broad terms, misapplying company funds for their own purposes and benefit.

6    On 15 August 2024, the applicants consented to an order that they file and serve their defence by 29 August 2024.

7    The applicants did not file and serve their defence by 29 August 2024.

8    On 6 September 2024, the applicants consented to orders that the time for them to file their defence be extended to 4.00 pm on 12 September 2024, and that if a defence was not filed by that time, the respondents “may apply for default judgment”.

9    On 12 September 2024, the applicants filed their defence.

10    On 25 September 2024, the respondents requested further and better particulars of the defence (Request for Particulars) and filed, pursuant to r 20.31 of the Federal Court Rules 2011 (Cth) (the Rules), a notice requiring production of certain documents to which reference was made in the defence (Notice to Produce). The applicants failed to answer the Request for Particulars or produce the documents sought in the Notice to Produce or otherwise comply with the requirements of r 20.31 of the Rules.

11    On 10 October 2024, the applicants consented to orders that they file and serve a response to the Request for Particulars and respond to the Notice to Produce by 4.00 pm on 18 October 2024 (First Extension Orders).

12    The applicants failed to comply with First Extension Orders. No response was provided to the Request for Particulars. A purported response was made to the Notice to Produce, but it lacked the degree of detail required by r 20.31(2) of the Rules, and the applicants do not contend that it was sufficient to constitute compliance with the First Extension Orders.

13    In or about November 2024, the applicants changed their legal representatives.

14    On 3 December 2024, the matter was listed for further case management to address the applicants’ failure to comply with the First Extension Orders. Mr Andrew Stewart, solicitor, appeared for the applicants. He had taken over conduct of the proceeding on behalf of the applicants on or about 12 November 2024. In the course of the case management hearing, Mr Stewart had the following exchanges with the primary judge:

HIS HONOUR: Well, given that there’s been no formal application made, I suppose I shouldn’t give judgment. But there’s an outstanding request for further and better particulars that your clients consented to provide by 25 September 2024. What about that, is that - - -

MR STEWART: And that’s something that I will be finalising today with my clients.

HIS HONOUR: So you will comply with those by the – you will comply with orders 1 and 2 by the 10th – by 13 December?

MR STEWART: Yes, your Honour.

…

MR STEWART: Your Honour, I’ve only just come onto – on record, about two and a half weeks ago. I’m progressing the matter. Orders will be complied with. A number of other applications I’ve been corresponding with my friend. It’s not a straightforward matter. And like I said, we don’t gavel [sic] with costs for the delay in having to appear today. But the matter should be in the course in the usual way.

15    In the context of those assurances, the primary judge then made an order extending the time for the applicants to comply with the First Extension Orders to 13 December 2024 (Second Extension Orders). The primary judge also ordered that the applicants pay forthwith the respondents’ costs arising from their failure to comply with the First Extension Orders and the 3 December 2024 case management hearing. The primary judge recorded at PJ [24] that in ordering that the costs be paid forthwith, he advised the parties:

HIS HONOUR: There’s nothing you need to say. In relation to the cost, here the issue is one of deleteriousness by the defendants. I hasten to mention that that does not reflect on the defendant’s current solicitors, who have only recently been briefed, but the defendants have failed in a contumacious way to comply with orders of the court. Not only that, but consent orders, orders which they had agreed to, rather than were imposed upon them. It’s not likely that this matter will end anywhere soon. There’s no way in which the plaintiff should bear the cost of this, the cost referred to in paragraph 3. So they ought be paid by the defendants to the plaintiffs.

And given that resolution of the matter seems to be a long way off, which is one of the bases for ordering costs being paid forthwith, if that is appropriate, as is the fact that this is, as I say, contumelious or contumacious delay, one can only – there’s no explanation for it either. That’s another good reason for why they should be paid forthwith. There’s very little the court can do to hurry parties along, but orders of this nature are one of them, and it should be exercised in this case. So I will make order number 3.

16    The applicants did not comply with the Second Extension Orders.

17    On 17 December 2024, the respondents filed an application for default judgment. That application was listed for hearing on 30 January 2025 at 9.30 am.

18    On 29 January 2025, the applicants sent two letters to the respondents, purportedly providing the responses to the Request for Particulars and the Notice to Produce. The letters were accompanied by a single document that the applicants contended was the only available document they were able to produce in response to the Notice to Produce.

19    The respondents’ application for default judgment was heard by the primary judge on 30 January 2025. Mr Stewart appeared for the applicants.

C.     Evidence relied on by the applicants

20    The applicants relied on affidavits from Mr Stewart and Mr Rodger Johnston, the second applicant, both sworn on 29 January 2025 and filed at 4.00 pm and 6.00 pm, respectively, in response to the respondents’ application for default judgment.

21    Mr Stewart gave the following evidence:

(a)    on approximately 12 November 2024, he was engaged by the applicants and obtained access to the file from the previous solicitors in a piecemeal manner over the subsequent two weeks;

(b)    on 4 December 2024, he emailed the applicants raising with them the need to comply with the Court’s orders with respect to the Request for Particulars and the Notice to Produce;

(c)    on or about 5 December 2024, he underwent surgery and then returned to work “in full capacity” the following week;

(d)    on 13 December 2024, he emailed the applicants following up on the need for them to respond to the Request for Particulars and the Notice to Produce. He received a response from the applicants later that day, but it “wasn’t a full and detailed response”;

(e)    he subsequently sought further information and clarification from the applicants and, given the “nature and complexity of the proceedings”, formed the view that counsel needed to be briefed and any response to the Request for Particulars and the Notice to Produce” would need to be settled by counsel;

(f)    on 18 December 2024, he engaged counsel to appear in the proceeding and a related Supreme Court proceeding but counsel returned his brief on the following day because he was “jammed in another matter” and was under a mistaken belief that the matter was only listed for a case management hearing;

(g)    he informed the applicants prior to the Christmas and New Year break that alternative counsel would need to be briefed and sought further documents and responses from the applicants to the Request for Particulars;

(h)    from 9 January to 27 January 2025 (inclusive), he was overseas but was able to arrange for a second counsel to be briefed on 20 January 2025. This counsel, however, returned the brief on 22 January 2025 after “observing the amount of work involved and his lack of capacity to take on the substantial matters observed in the proceedings”;

(i)    later on 22 January 2025, a third counsel was retained, but his brief “did not include all the material relevant to the proceedings” because he had been focusing on the “Supreme Court proceedings on 28 January 2025” before turning his attention to this proceeding;

(j)    on 29 January 2025, the third counsel returned his brief on the basis that he “did not have time and the capacity to prepare and appear adequately” at the hearing on 30 January 2025.

22    Mr Stewart annexed to his affidavit a response to the Request for Particulars and the Notice to Produce and stated that (a) although they had not yet been settled by counsel, he believes that “it is an adequate response”, and (b) he has “instructions and verily believe[s] that there is a serious question to be tried”. Mr Stewart did not annex to his affidavit any email communications that he had with the applicants in relation to the Second Extension Orders.

23    Mr Johnston gave evidence in response to the affidavit of Mr Carl Hagon, the solicitor for the respondents, affirmed on 28 January 2025, which the respondents relied on in support of their application for default judgment (Mr Hagon’s affidavit). Mr Hagon’s affidavit was directed at the merits of the claims that the respondents were advancing in the proceeding. In his affidavit, Mr Johnston, in summary form, sought to answer the contentions advanced by Mr Hagon. Generally, the responses by Mr Johnston did not arise above admissions, bare denials, conclusionary contentions or statements that more detailed responses could only be provided after discovery had been given. Mr Johnston did not seek to provide any explanation for the applicants’ failure to comply with the Second Extension Orders.

D.     The reasons of the primary judge

24    The primary judge found that the applicants had not identified any substantive basis for their failure to comply with either the First Extension Orders or the Second Extension Orders: PJ [28].

25    The primary judge considered that Mr Stewart tended to “skirt around the issue” in his affidavit, and the explanations that he provided showed, if accepted, only a derisory attempt to comply with the Second Extension Orders. In particular, his Honour observed that Mr Stewart (a) made no mention of any meeting with his clients on 3 December 2024, (b) failed to annex an email that he stated that he had sent to his clients on 4 December 2024 requesting them to provide him with the necessary information to enable him to comply with the orders of the Court, and (c) stated that he had sent a follow up email to his clients on 13 December 2024 asking them to comply with his request “so that he could comply with orders of the Court”, which suggested that no response form the applicants had been received to Mr Stewart’s 4 December 2024 email: PJ [29]-[30]. His Honour acknowledged that Mr Stewart gave evidence that he had undergone a medical procedure in the week of 2 December 2024 but concluded that was irrelevant, because Mr Stewart had attributed any delay in complying with the Second Extension Orders to the applicants’ failure to respond to his 4 December 2024 request for information: PJ [32]. Moreover, in relation to Mr Stewart’s evidence that he considered the issues involved in the response to the Request for Particulars were “difficult and complex”, such that he needed the assistance of counsel, his Honour observed that, if it was so, this conclusion would have been obvious from the pleadings and did not require reference to anything said by his clients, the applicants: PJ [33].

26    The primary judge concluded that no real attempt was made by the applicants to comply with the Second Extension Orders in the period between 3 December and 13 December 2024: PJ [34].

27    The primary judge then turned to consider the period after 13 December 2024.

28    His Honour observed that Mr Stewart’s evidence of his attempts to brief counsel on 18 December 2024 and thereafter were of attempts made after the date for compliance with the Second Extension Orders had elapsed: PJ [35]. His Honour considered that there was a “startling absence of evidence” of any serious attempt by the applicants to “overcome their non-compliance” with the Court’s orders after 13 December 2024, emphasising there had been no application to the Court for an extension of time, no request for an extension to the respondents, and the failure to take any steps “to ameliorate the non-compliance” was simply left unexplained: PJ [36].

E.     Draft appeal grounds

29    The draft notice of appeal identified the following proposed appeal grounds:

1.    The primary Judge erred by failing to provide adequate reasons in the ex-tempore judgment (Judgment) given on 30 January 2025 at Brisbane in proceedings QUD397/2024 (Proceedings).

2.     The primary judge erred in exercising his discretion under rule 5.23 of the Federal Court Rules 2011 (Cth) (Rule) by acting on wrong principle, and failing to have proper regard to relevant matters, in circumstances where:

a)    the primary Judge did not approach the exercise of discretion under the rule in accordance with the principles identified in Professional Administration Service Centres Pty Ltd v Commissioner of Taxation [2012] FCAFC 180 at [44];

b)    the primary Judge failed to have proper regard to the nature of the appellants’ default, the duration of the default, and whether the default was a continuing one, in circumstances where:

i.    there was evidence before the primary Judge to explain the appellants’ delay in complying with the court’s orders requiring the appellants to answer the respondents’ request for further and better particulars of their defence; and

ii.    there was evidence before the primary Judge that by the time of the hearing the appellants had in fact answered the respondents’ request for further and better particulars of their defence;

c)    there was no evidence demonstrating that the respondents would suffer substantial prejudice if the Proceedings were not dismissed;

d)     the appellants will suffer significant prejudice by the making of orders one to five (inclusive) on 30 January 2025 (Orders), in that judgment will be entered against them in favour of the respondents without a hearing on the merits of the respondents’ claim;

e)     the primary Judge failed to have proper regard to the impact and effect that making the Orders would have on the appellants;

f)    the primary Judge failed to have proper regard to the stage that the Proceedings had reached, or that the respondents had in fact filed a reply to the appellants’ defence (and thereby joined issue with it); and

g)    the primary judge failed to have proper regard to section 37M of the Federal Court of Australia Act 1976 (Cth), and the overarching purpose of facilitating the just determination of the Proceedings.

3.    In entering default judgment under the Rule in the Proceedings and making the Orders, the primary Judge erred by finding the following as facts in the Judgment in the absence of evidence supporting those findings of fact:

a)    the default on the part of the appellants was ‘contumacious and contumelious’; and

b)    there has been only ‘some minor attempt to comply’, in circumstances where there was evidence before the court that by the time of the hearing the appellants had answered the respondents’ request for further and better particulars of their defence.

30    The application for leave to appeal and the affidavit of Mr Stephen D’Emilo sworn on 11 February 2025 in support of the application annexing the draft notice of appeal were filed on 13 February 2025, being four days prior to the primary judge delivering written reasons for judgment. His Honour had delivered brief reasons on the transcript on 30 January 2025 at the time that he made orders for default judgment. In the circumstances, the draft appeal grounds were expressed in relatively general terms and included proposed ground 1 challenging the default judgment on the ground that the primary judge had failed to provide adequate reasons.

31    Ms Bridie Nolan of counsel who appeared for the applicants at the hearing of this proceeding confirmed that leave to pursue ground 1 was no longer pressed.

32    The proposed appeal grounds are directed at the exercise of discretion by the primary judge to enter default judgment. The applicants accepted before the primary judge that the statement of claim articulated sound causes of action in several respects, and if the allegations in the statement of claim were in fact made out, the respondents would be entitled to judgment: PJ [7] and [42].

33    Further, the applicants did not challenge the findings made by the primary judge that they had failed to comply with the time periods specified in the Second Extension Orders and were therefore in default.

F.     Relevant Principles

F.1.     Leave to appeal

34    The decision of the primary judge was interlocutory in nature, and, therefore, the applicants require leave to appeal: s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (FCA Act).

35    It is well established that two criteria need to be addressed in an application for leave to appeal from an interlocutory judgment. First, whether the judgment was attended with sufficient doubt to warrant it being reconsidered by the Full Court, and second, whether substantial injustice would result if leave were refused: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; [1991] FCA 844 at [2] (Sheppard, Burchett and Heerey JJ).

36    Subsequently, the Full Court stated in Melbourne City Investments Pty Ltd v Treasury Wine Estates Limited (2017) 252 FCR 1; [2017] FCAFC 98 at [38] (Jagot, Yates and Murphy JJ):

The primary considerations in determining whether to grant leave to appeal from the decision of a single judge of the Court are well-established. Before leave may be granted the applicant must usually show that:

(a)    in all the circumstances the decision to be appealed is attended with sufficient doubt to warrant its reconsideration on appeal; and

(b)    supposing the decision to be wrong, substantial injustice would result if leave were refused: see Décor Corp v Dart Industries Inc (1991) 33 FCR 397; [1991] FCA 844 at 398-399 (Sheppard, Burchett and Heerey JJ).

The sufficiency of the doubt in respect of the decision to be appealed and the question of substantial injustice bear upon each other so that the degree of doubt which is sufficient in one case may be different from that required in another. The considerations are cumulative such that leave ought not to be granted unless each limb is made out: Rawson Finances Pty Ltd v Deputy Commissioner of Taxation [2010] FCAFC 139 at [5] (Ryan, Stone and Jagot JJ).

37    The practical operation or effect of the interlocutory order from which leave to appeal is sought must be considered. Leave should readily be given if the practical effect of the interlocutory order is to determine the proceeding or an important issue in the proceeding: Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238; [2011] FCAFC 156 at [33] (Dowsett, Foster and Yates JJ) citing Ex parte Bucknell (1936) 56 CLR 221 at 225-226 (Latham CJ, Rich, Dixon, Evatt and McTiernnan JJ).

F.2.     Discretionary judgments

38    It is not sufficient for the purposes of an appeal from a discretionary judgment for this Court to conclude that it would have exercised the relevant discretion differently had it been in the position of the primary judge: House v R at 504-505.

39    Their Honours Dixon, Evatt and McTiernan JJ explained in House v R at 505:

If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. Unlike courts of criminal appeal, this court has not been given a special or particular power to review sentences imposed upon convicted persons. Its authority to do so belongs to it only in virtue of its general appellate power. But even with respect to the particular jurisdiction conferred on courts of criminal appeal, limitations upon the manner in which it will be exercised have been formulated.

40    Subsequent decisions of the High Court have emphasised that there is a strong presumption in favour of the correctness of the decision appealed from in a discretionary judgment, and the decision should be affirmed, unless the appeal court is satisfied that it is clearly wrong: Samsung at [39], citing Australian Coal and Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621 at 627 (Kitto J) and Mallet v Mallet (1984) 156 CLR 605 at 634 (Wilson J).

41    The following statement by Kitto J in Australian Coal and Shale at 627 was described in Mallet at 634 by Wilson J as a succinct statement of the principle in House v R:

… the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgment is that there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong. A degree of satisfaction sufficient to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts. Again, the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance: House v R.

[Footnote omitted]

42    The Court in Shepherd v Watt [2022] FCAFC 78 (Greenwood, Burley and Halley JJ) stated at [61]-[62]:

The restatement of the House v R principle by Kitto J in Australian Coal and Shade expands the scope of the principle in that it uses the phrase “failing to give weight or sufficient weight to relevant considerations”, rather than the language employed by the plurality in House v R of “he does not take into account some material consideration”.

In Rodgers v Rodgers (1964) 114 CLR 608; [1964] HCA 25, McTiernan, Taylor and Owen JJ described the restatement of the House v R principle by Kitto J in Australian Coal and Shale as a “convenient summary” of the principles applicable in appeals from orders involving discretionary judgments, and quoted the passage in full (at 619). The restatement by Kitto J was also quoted in full and applied in Risk v Northern Territory (2007) 240 ALR 75; [2007] FCAFC 46 at [113] (French J, as his Honour then was, Finn and Sundberg JJ), Ahern v DCT (Qld) (1987) 76 ALR 137; [1987] FCA 504 at 147 (Davies, Lockhart and Neaves JJ), and Bomanite Pty Ltd v Slatex Corp Aust Pty Ltd (1991) 32 FCR 379; [1991] FCA 536 at 387 (Gummow J).

F.3.     Default judgment

43    Rule 5.23(2) of the Rules provides:

(2)     If a respondent is in default, an applicant may apply to the Court for:

(a)     an order that a step in the proceeding be taken within a specified time; or

(b)     if the claim against the respondent is for a debt or liquidated damages—an order giving judgment against the respondent for:

(i)     the debt or liquidated damages; and

(ii)     if appropriate, interest and costs in a sum fixed by the Court or to be taxed; or

(c)     if the proceeding was started by an originating application supported by a statement of claim or an alternative accompanying document referred to in rule 8.05, or if the Court has ordered that the proceeding continue on pleadings—an order giving judgment against the respondent for the relief claimed in the statement of claim or alternative accompanying document to which the Court is satisfied that the applicant is entitled; or

(d)     an order giving judgment against the respondent for damages to be assessed, or any other order; or

(e)     an order mentioned in paragraph (b), (c) or (d) to take effect if the respondent does not take a step ordered by the Court in the proceeding in the time specified in the order.

44    For present purposes, r 5.22(b) of the Rules provides that a party is in default if the party fails to comply with an order of the Court, and r 5.23(2) relevantly provides that if a respondent is in default, the applicant may apply to the Court for an order for judgment against a respondent for a debt or liquidated damages together with interests and costs.

45    Formerly, Order 10 of the Rules governed the Court’s case management system and included in r 7 a procedure for dealing with default, including giving a party a right to apply to the Court for the entry of judgment against any other party that was in default of orders requiring a step to be taken in the proceeding. The principles governing the application of r 7 were stated by Wilcox and Gummow JJ in Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388 at 395 in the following terms:

It is to be noted that the power given by this rule is conditioned on one circumstance only: the failure of a party to comply with an order of the court directing that party to take a step in the proceeding. There is no requirement of intentional default or contumelious conduct, although the attitude of the applicant to the default and the court’s judgment as to whether or not the applicant genuinely wishes the matter to go to trial within a reasonable period will usually be important factors in weighing the proper exercise of the discretion conferred by the rule. There is no requirement of “inordinate and inexcusable delay” on the part of the applicant or the applicant's lawyers, although any such delay is likely to be a significant matter. There is no requirement of prejudice to the respondent, although the existence of prejudice is also likely to be significant. And it must be remembered that, in almost every case, delay adversely affects the quality of the trial and is an additional burden upon the parties.

G.     Proposed Ground 3

G.1.     Overview

46    It is convenient to address proposed ground 3 before addressing proposed ground 2, because it seeks to challenge factual findings relevant to consideration of proposed ground 2.

47    In proposed ground 3, the applicants seek to contend that the primary judge erred in finding as facts, in the absence of any evidence, that (a) the default on the part of the applicants was “contumacious and contumelious”, and (b) there had only been some “minor attempts to comply”, where there was evidence before the Court that the applicants had complied with the Court’s orders.

G.2.     Contumacious and contumelious finding

48    The basis on which the primary judge made a finding that the default on the part of the applicants was contumacious and contumelious is readily apparent from the following reasoning of his Honour at PJ [24]:

The question of costs of the hearing of 3 December 2024 was also dealt with on that day. Whilst it was accepted that the defendants should pay the plaintiffs’ costs, an application was made that they be taxed and paid forthwith. That application was acceded to and brief reasons were given. They included the following:

HIS HONOUR: There’s nothing you need to say. In relation to the cost, here the issue is one of deleteriousness by the defendants. I hasten to mention that that does not reflect on the defendant’s current solicitors, who have only recently been briefed, but the defendants have failed in a contumacious way to comply with orders of the court. Not only that, but consent orders, orders which they had agreed to, rather than were imposed upon them. It’s not likely that this matter will end anywhere soon. There’s no way in which the plaintiff should bear the cost of this, the cost referred to in paragraph 3. So they ought be paid by the defendants to the plaintiffs.

And given that resolution of the matter seems to be a long way off, which is one of the bases for ordering costs being paid forthwith, if that is appropriate, as is the fact that this is, as I say, contumelious or contumacious delay, one can only — there’s no explanation for it either. That’s another good reason for why they should be paid forthwith. There’s very little the court can do to hurry parties along, but orders of this nature are one of them, and it should be exercised in this case. So I will make order number 3.

49    The primary judge had earlier set out the background and the incidents of default at PJ [4]-[23]. His Honour’s description of the applicants’ default as contumacious and contumelious was a finding that was supported by the evidence of the history of the applicants’ disregard for the Court’s orders. That evidence provided a sufficient foundation for findings that the applicants’ conduct had been wilfully disobedient (that is, contumacious) and insolent (that is, contumelious).

G.3.     Minor attempts to comply

50    The primary judge found that the fact that there had been “some late minor attempt to comply” was relevant but “not sufficient to dissuade the exercise of discretion in r 5.23(2) of the Rules in this case”: PJ [52].

51    The “some late minor attempt to comply” finding emerged from the following reasoning of the primary judge at PJ [46]-[49]:

In that respect, one issue is whether there has now been compliance with the orders, albeit late. The defendants claimed that the required responses were provided in two letters sent on 29 January 2025, which were accompanied by the only document that they were able to produce in response to the notice. It is noted that the letters were sent on the day immediately prior to the hearing of the application for judgment.

Despite Mr Stewart’s assertions that responding to the request for particulars required the assistance of counsel, it appears that no assistance was forthcoming, so he and his staff prepared the response instead. It may be that Mr Stewart has made a diligent attempt to the best of his ability to provide particulars, but it is apparent that they are inadequate in many respects. In particular, the defendants’ case, as pleaded, turns in part on the existence of certain oral agreements of which particulars were sought. The particulars provided do not sufficiently respond to the request made and avoid the quintessential information about the content of the critical agreements. Other statements, said to be in response to requests for particulars, do not correlate to the requests at all, but appear to provide some narrative around the issue. As a general observation or finding, I agree with the submissions made by Mr Brennan for the plaintiffs that there has been no substantive response to the request for particulars. Whilst some responses were made, there was no real attempt to provide the information required.

The position regarding the defendants’ compliance with the order requiring them to respond to the notice to produce is a little more difficult. A file note was provided with the letters of 29 January 2025 and the defendants assert that any other relevant documents are not available. For present purposes, there is no need to determine whether or not there has been compliance, albeit late, with the obligation to produce documents, though it is worthy of remark that there did not seem to be an attempt to respond to the notice to produce in accordance with the Rules.

In summary, the position is that there was a clear default in compliance with the Court’s orders of 3 December 2024 without any adequate explanation, and the late attempt to perform the required obligations fell short of what was required.

52    The finding that the actions only amounted to a “late minor attempt to comply” was not only open to the primary judge but plainly an appropriate characterisation of the steps taken by the applicants to comply with the Court’s orders. As candidly acknowledged by counsel for the applicants at the hearing of the application for leave to appeal, “[a]nybody – anybody who has practised as long as I have knows that it is woefully inadequate”.

G.4.     Conclusion

53    For the foregoing reasons, the findings sought to be challenged in proposed ground 3 are not reasonably arguable and therefore not attended with sufficient doubt to warrant a grant of leave to appeal. We otherwise consider the issue of substantial injustice at the conclusion of our consideration of proposed ground 2.

H.     Proposed Ground 2

H.1.     Overview

54    In proposed ground 2, the applicants seek to contend that the primary judge erred in exercising the discretion under r 5.23 of the Rules by acting on wrong principles and failing to have regard to seven matters. In their written submissions, the applicants sought to advance several propositions that were not pressed in their oral submissions, and which find no support in any relevant authority. These included (a) the termination of proceedings demands principled justification grounded in irredeemable procedural default, (b) the procedural default must rise to a level that renders the trial unfair or imposes unjustifiable prejudice on the opposing party, and (c) if it is contended that a defence is deficient in particularity, the proper procedural course is to seek to have the offending paragraphs struck out, and the matter can proceed to trial on the remaining issues.

55    In the course of their oral submissions at the hearing of their application for leave to appeal, the applicants distilled their contentions in support of ground 2 to five propositions that they contend establish that the primary judge acted on wrong principles and failed to have regard to relevant matters in making the orders for default judgment, and the result was plainly unreasonable or unjust.

56    The five propositions advanced by the applicants overlapped and, at times, were relevant to both the “attended with sufficient doubt” and the “substantial injustice” limbs of Décor.

H.2.     Misapplication of overarching purpose and principle

57    First, the applicants contend that the primary judge misapplied the overarching purpose and principles of case management in s 37M and s 37N of the FCA Act. They submit that the primary judge erred by applying s 37M and s 37N in a rigid and formulaic algorithmic manner, rather than adopting an evaluative conceptual analysis. Further, they submit that the primary judge’s finding at PJ [31] that allowing their defaulting conduct to stand would seriously undermine s 37M and s 37N, and gave the overarching purpose a disciplinary function that it does not bear. They submit, citing the Full Court’s decision in Shepherd, that the function of s 37M and s 37N is to facilitate the just resolution of issues according to law, not a licence to punish parties in default by terminating proceedings that otherwise remain capable of resolution.

58    The primary judge stated at PJ [51]:

In a similar vein, it should be observed that the conduct of the defendants in this case, if allowed to prevail by refusing to grant the relief sought, would seriously undermine ss 37M and 37N of the Federal Court Act. Those provisions exhort the parties and the courts to act as quickly, inexpensively and efficiently as possible, and that necessitates the efficient disposal of the Court’s process and proceedings in a timely manner: see Fraser-Kirk v David Jones Ltd (2010) 190 FCR 325, 332–333 [26]. The conduct of the defendants in this case is the antithesis of those obligations, and, were it to be excused, the Court might as well put ss 37M and 37N to one side. That I do not propose to do. Part VB of the Federal Court Act does not, and should not be seen to, contain empty rhetoric: Kumova v Davison (No 2) [2023] FCA 1, [86].

59    We do not accept that the primary judge has misapplied the overarching purpose and principles of case management in s 37M and s 37N of the FCA Act. For present purposes it is sufficient to consider s 37M.

60    Section 37M provides:

37M    The overarching purpose of civil practice and procedure provisions

(1)    The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:

(a)    according to law; and

(b)    as quickly, inexpensively and efficiently as possible.

(2)    Without limiting the generality of subsection (1), the overarching purposes includes the following objectives:

(a)    the just determination of all proceedings before the Court;

(b)    the efficient use of the judicial and administrative resources available for the purposes of the Court;

(c)    the efficient disposal of the Court’s overall caseload;

(d)    the disposal of all proceedings in a timely manner;

(e)    the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

(3)    The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.

61    It is readily apparent that s 37M(1) provides that the two pillars necessary to facilitate a “just resolution of disputes” are that they be determined “according to law” and “as quickly, inexpensively and efficiently as possible”. In turn, s 37M(2) provides that one of five objectives that are included in the overarching purpose is “the just determination of all proceedings before the Court”. That specific objective necessarily must be evaluated against each of the other specific objectives identified in s 37M(2). The just resolution of disputes for the purposes of s 37M includes and encompasses the resolution of disputes as quickly, inexpensively and efficiently as possible.

62    As the respondents submit:

The cumulative effect of the applicants’ conduct then was (a) to delay for many months what should have been a quick and easy task of responding to the notice to produce and the [further and better particulars] request; (b) thereby obfuscate the respondents’ ability to efficiently prosecute their case and cause them additional expense; and (c) ultimately deliver at the last moment a perfunctory set of responses which failed to cure the deficiencies in the defence and left many of the obscurities about the pleaded defence in play, therefore inviting only further delay and expense for the respondents and making a fair trial at an acceptable time in the future impossible. That conduct was clearly incompatible and inconsistent with the overarching purpose stated in s 37M of the Federal Court of Australia Act 1976 (Cth) (FCA Act).

(Emphasis in original.)

63    The entry of default judgment against parties who have materially failed to act in a manner that was consistent with the resolution of disputes as quickly, inexpensively and efficiently as possible, without an adequate explanation, is giving effect to the overarching purpose. It is not using it as a licence to punish parties in default in a manner contrary to the overarching purpose.

H.3.     Not a proportionate response

64    Second, the applicants contend that the primary judge failed to consider whether default judgment was a proportionate response to their default. They submit that the primary judge erred in not undertaking a structured analysis of the relevant principles for the exercise of the discretion pursuant to r 5.23 of the Rules. They submit that the primary judgment contains no analysis of (a) whether any alternative orders could have been made such as guillotine orders, costs orders, case management timetables or strike out orders, and (b) the seriousness of entering a default judgment in the amounts ordered by the primary judge and the consequences to the applicants. Further, the applicants submit (a) a defence had been filed, and the proceeding involved contested factual issues, and (b) late compliance by the applicants with the Court’s orders was discounted, without proper weight being given to that attempted compliance.

65    Seeking to rely on proportionality contentions in challenging discretionary judgments is inherently problematic. A discretionary judgment is typically the product of an evaluative exercise undertaken by a judge in which various competing or complementary considerations are weighed. The weight to be given to each consideration is necessarily a matter for the judge making the discretionary judgment. In that context, to impugn a discretionary decision on the basis that a judge has not given “sufficient weight” to a consideration or has failed to expressly refer to a potentially relevant consideration demands close attention to the specific factual and legal circumstances in which the decision has been made.

66    In advancing their proportionality contentions, the applicants place considerable reliance on the decision of the Full Court in Shepherd, in particular the reasoning at [172]-[179].

67    In Shepherd, the primary judge had determined that it was not in the interests of justice to grant the Shepherd parties an extension of time to serve their outlines of evidence, nor to grant them leave to file an amended cross-claim. As the Full Court explained at [194], the necessary consequence of the Shepherd parties not being permitted to rely on any evidence was that their defence was struck out, the cross-claim was dismissed, and summary judgment was entered against them.

68    The Full Court concluded at [179]:

In our respectful opinion, that evaluative balancing exercise, fully taking into account the subject matter of the proceeding and the truly “determinative” consequences for the Shepherd parties, is not properly reflected in his Honour’s reasons in explaining the basis for the exercise of the discretion.

69    The Full Court in Shepherd was not seeking to lay down any general rule as to the specific nature or scope of the necessary evaluative exercise but rather what it considered necessary for a valid exercise of discretion in the particular circumstances before the primary judge in that case. The distinctive nature of those circumstances was highlighted by the Full Court at [151]:

The character of the proceeding, its complexity, scope and scale and proposals to amend the framing of issues to be quelled by an exercise of judicial power in the proceeding would usually compel some reflection for weighing in the balance the bundle of rights and interests in issue in the proceeding overall affected by the proposed orders. That process of weighing would involve considering the detail of the rights and issues in question and the consequences of effectively extinguishing the defences and cross-claims of, in this case, the Shepherd parties and the rights and interests they sought to agitate in the controversy. That is to say, the prejudice likely to be suffered if the orders were made.

70    The complexity of the task in preparing evidence in the proceeding before the primary judge in Shepherd emerges in the reasoning of the Full Court at [155], [157] and [160]:

The proceeding was commenced by an originating application and the SOC pleading the matters already noted. In order to formulate the SOC addressing all of the elements of the transactions and each one of the many pleaded representations mentioned earlier, considerable time and effort must have been dedicated by the Watt parties, solicitors and counsel to gathering the relevant instructions, considering the documents and drafting and finalising the pleaded case. Even with the advantage of that preparation, the Watt parties who had been directed on 21 February 2020 to serve outlines of evidence together with any documents upon which they intended to rely by 17 April 2020 (55 days later) were not able to do so until 12 October 2020, seven months and 21 days later (essentially eight months later). Orders were made on 25 June 2020 adjusting the date for service by the Watt parties of their material until 10 July 2020 and then further orders were made on 24 September 2020 again adjusting the date to 2 October 2020. Those various orders were made with the consent and support of the Shepherd parties. Ultimately, on 12 October 2020, the Watt parties served outlines of evidence of eight witnesses and 1,400 pages of documents.

…

The order of 24 September 2020 also provided for the service by the Shepherd parties of their outlines of evidence and documents by 11 December 2020, a period of 60 days (almost nine weeks, but not eight months), from the date of service on 12 October 2020 by the Watt parties of their material. The Shepherd parties could not meet that 60 day requirement and the parties agreed a consent order on 3 February 2021 extending the time until 2 April 2021. The primary judge required an explanation for the extension until 2 April 2021. The solicitors for the Shepherd parties responded to the chambers of the primary judge advising that a number of factors (reasons) had made the extension of time necessary including that the two key witnesses had been ill and insurance issues (the extent of coverage) needed to be resolved (and had been resolved).

…

By the time of the making of the order on 4 February 2021, both sets of parties, by consent, were content with the way in which the proceeding had evolved, no doubt with the parties and their solicitors taking into account the difficulties of dealing with complex factual matters in a period of social anxiety and threats to health, and the difficulties of conducting the litigation and gathering instructions in an orthodox way brought about by the pandemic and other factors. such as the illness of witnesses and insurance issues. The primary judge had expressed concern about the extension to 2 April 2021, but, in light of the submissions of the Shepherd parties and recognising the consent of the Watt parties to the proposed extension, the primary judge made the orders of 4 February 2021 extending the time available to the Shepherd parties to 2 April 2021.

71    Moreover, the Full Court in Shepherd considered at [181] that because at the date of the hearing on 20 May 2021, (a) the extension sought by the Shepherd parties to file the witness outlines was only eight days, and (b) the extension beyond the due date set when the extension was granted by consent on 4 February 2021 amounted to an additional period of about eight weeks, the exercise of discretion by the primary judge:

… ought also to have taken into account other possible orders such as allocating a trial date later in the year, setting expedited programming orders working back from the trial dates, together with a number of dates allocated for case management hearings in order to supervise the progression of the matter. If trial dates could not be allocated, expedited programming orders might nevertheless have been considered coupled with the allocation of dates for supervisory case management hearings of the proceeding.

72    It is against that factual background and findings that the Full Court in Shepherd determined at [183] that the decision by the primary judge not to allow the Shepherd parties an extension to serve outlines of evidence involved an evaluative exercise that was attended by sufficient doubt to warrant its reconsideration on appeal.

73    The position in this case was fundamentally different to that before the Full Court in Shepherd because (a) the scale and complexity of the work involved in the provision of particulars of the defence and responding to the Notice to Produce in this proceeding cannot plausibly be equated with the scale and complexity in preparing the witness outlines in Shepherd, (b) the applicants had not sought any extension to comply with the Second Extension Orders, (c) the respondents had not sought or required commensurate extensions for their compliance with orders made by the Court, (d) the proceeding had not progressed beyond the pleadings, and adequate particulars of the defence had still not been provided, and (e) the explanations for the default fell far short of the more probative and compelling explanations provided by the applicants in Shepherd. For these reasons Shepherd does not assist the applicants in this case.

74    The applicants’ reliance on the decision of the Full Court in Professional Administration Service Centres Pty Ltd v Commissioner of Taxation [2012] FCAFC 180; (2012) 295 ALR 52 (Edmonds, McKerracher and Nicholas JJ) is also misplaced. Unlike the position as stated in Professional Administration Service at [43] and [50], in this case (a) there had not been substantial compliance with the Court’s orders, (b) the proceeding was not at an advanced stage, no evidence had been filed and served, and (c) the primary judge did refer and have regard to the principles in Lenijamar at PJ [45] and [50].

75    The dispositive reasoning of the primary judge in exercising the discretion of the Court to grant default judgement is at PJ [52]:

In this case, there is more than sufficient justification to warrant the exercise of discretion of the Court to grant judgment. The delay is, as was said on 3 December, contumacious and contumelious. That was compounded by further delay and non-compliance, despite assurances of immediate compliance. The lack of any evidential foundation supporting a justification for the further non-compliance and delay is remarkable and significant. So too is the absence of evidence that the defendants made any real attempt to observe the timeframes imposed by this Court; timeframes that were, it should be noted, amended and extended for their benefit. The fact there has been some late minor attempt to comply is relevant; however, when considered in the broader context, it is not sufficient to dissuade the exercise of the discretion in r 5.23(2) of the Rules in this case.

76    The matters that the primary judge considered at PJ [52] were both relevant and material matters that his Honour was entitled to take into account in exercising the Court’s discretion. The primary judge did not expressly consider in his dispositive reasoning the impact of the entry of default judgment, but the impact on the applicants was self-evident in the orders that his Honour made on 30 January 2025. It cannot sensibly be suggested that his Honour was not acutely aware that when he made the orders entering judgment against the first applicant in the amount of $2,358,695.75 and interest of $106,053.42 and against the second applicant in the amount of $2,880,000.00 and interest of $129,492.69, it would have a material impact on the financial position of the applicants.

77    Moreover, the applicants did not adduce any specific evidence of prejudice at the hearing of the default judgment application, beyond the self-evident detriment of the entry of judgment in those amounts against them.

78    The discretion exercised by the primary judge pursuant to r 5.23(2) of the Rules had to be exercised in a manner consistent with the interests of justice, and in particular, the overarching purpose. It did not require or demand any form of evaluative assessment of all alternative sanctions or measures to address default, in every case of default. Nor did it require an assessment to be made of whether the default might be capable of being remedied, and, if so, what mechanisms might be employed to enable a party in default to remedy the default. Almost any default, given sufficient time and resources, is capable of being remedied.

79    The primary judge addressed the seriousness of the default, the steps taken by the party to cure the default and the explanation for the default. Each was a matter plainly relevant to the exercise of his Honour’s discretion to enter default judgment against the applicants. Further, and relatedly, the applicants’ submissions before the primary judge opposing default judgment were limited to the alleged absence of any material prejudice to the respondents and their alleged belated compliance with the Second Extension Orders. The primary judge addressed both of these issues in his Honour’s reasons for judgment. None of the other matters that the applicants now contend the primary judge has failed to consider were raised before his Honour. If a Court is invited to make a discretionary decision to which many factors may be relevant, it is incumbent on parties who contend on appeal that attention was not given to particular matters to demonstrate that the primary judge’s attention was drawn to those matters: Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42 at [120] (Gummow ACJ, Kirby, Hayne and Heydon JJ), cited in Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181 at [48] (Jagot, Yates and Bromwich JJ).

80    The absence of any specific consideration by the primary judge of less onerous remedies in r 5.23 of the Rules does not render the exercise of discretion by his Honour to enter default judgment as unreasonable or otherwise sufficient to amount to error for the purposes of House v R. This is particularly the case given the applicants did not (a) propose any alternative timetabling arrangements to cure their default in their submissions opposing the entry of default judgement, (b) seek an adjournment of the application to afford them an opportunity to remedy their default, or (c) seek an extension of time to comply with the Second Extension Orders. Since none of these alternative pathways were advanced before the primary judge, there can be no error on his Honour’s part in failing to consider them: Hastwell v Kott Gunning [2021] FCAFC 70 at [109] (McKerracher, Kerr and Charlesworth JJ).

H.4.     Absence of specific prejudice

81    Third, the applicants contend that the primary judge erred by entering default judgment, notwithstanding that his Honour had accepted that the respondents had not suffered any specific prejudice.

82    The primary judge stated at PJ [50]:

It is said that the plaintiffs suffered no prejudice, and while Mr Brennan appropriately conceded that no specific prejudice was suffered, all parties necessarily suffer prejudice from delay in proceedings: Lenijamar, 396. They are kept out of their money if they are entitled to it and the litigation necessarily becomes more expensive. In addition, the Court’s time and resources are diminished by reason of any delay in proceedings and non-compliance with orders: see Dye v Commonwealth Securities Limited [2010] FCA 720, [20]–[21].

83    Delay inevitably leads to increased costs and a commensurate increase in both the emotional and financial strain of litigation. It imposes additional burdens not only on the parties to the proceeding but also on the limited and finite resources of the Court. As Katzmann J stated in Dye v Commonwealth Securities Limited [2010] FCA 720 at [20]–[21]:

In Bi v Mourad [2010] NSWCA 17 the NSW Court of Appeal refused leave to appeal from a decision of a Judicial Registrar of the District Court dismissing proceedings because of the plaintiffs’ late reformulation of their case and failure to comply with a deadline for filing an amended (and “quite defective”) pleading. Allsop P observed at [47]:

Delay is a feature of litigation intended to be eliminated as far as possible by the statutory enactment of the regime in the Civil Procedure Act. It cannot always be done. This purpose is not through some parliamentary authoritarian or over-prescriptive view of how people should lead their lives; rather, it is through the keen recognition of the conduct of the courts, in particular in the 20th century, of the need to deal with cases expeditiously if they are to be dealt with justly. Delay and case backlog are not merely factors affecting the costs of delivering justice; they corrode the ability of the courts to provide individual justice. The reforms that have taken place under the Civil Procedure Act and the evident attempt by courts to ensure efficiency can be seen not merely to reflect worthy efforts for efficiency but also to be steps vital for the provision of timely individual justice. Views may differ of justice in any particular case; that is the nature of the term and the value-laden task of a decision-maker to do justice.

Although these remarks were made in the context of the Civil Procedure Act 2005 (NSW), they apply equally in this court. They have recently been reinforced by the High Court in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27 ; (2009) 239 CLR 175 (Aon). In Aon the plaintiff sought an adjournment and leave to amend its statement of claim to add a substantial new claim after the trial had commenced. Aon was concerned with the ACT civil procedure rules but this court’s civil procedure regime is not relevantly different.

84    Additionally, as stated by Wilcox and Gummow JJ in Lenijamar at 395:

There is no requirement of prejudice to the respondent, although the existence of prejudice is also likely to be significant. And it must be remembered that, in almost every case, delay adversely affects the quality of the trial and is an additional burden upon the parties.

85    The primary judge did not err in taking into account and giving significant weight to the inherent prejudice to both the parties and the Court caused by the significant and continuing failure by the applicants to comply with the Second Extension Orders on the progress of the proceeding.

H.5.     Proceeding not unmanageable

86    Fourth, the applicants contend that the primary judge made no finding, nor could there be one, that the proceeding could not be managed. The applicants submit that (a) there was no finding that the defence did not disclose any reasonable case or that a trial would be futile, (b) no application had been made to strike out the defence, (c) no hearing date had been fixed, (d) on no view had the proceeding become unmanageable, and (e) there was no indication that the respondents’ position had deteriorated, or that the public interest in judicial efficiency had been meaningfully impacted.

87    They submit that the decision is attended by real and substantial doubt because it proceeds on a characterisation of the applicants’ conduct as both contumacious and contumelious “without analysis of the evidence, without considering alternative case management tools, and without assessing whether late responses materially cured default or demonstrated that they were materially curable or redeemable.”

88    As explained at [78] above, the exercise of discretion under r 5.23 of the Rules does not demand any assessment of whether a default can be remedied. Nor does it require any finding that a defence did not disclose a reasonable case, that a trial would be futile, the proceeding had become “unmanageable”, or that the public interest in judicially efficiency had been meaningfully impacted. These would erect barriers and hurdles to the making of orders for default judgment that are both novel and antithetical to the overarching purpose.

89    For the purpose of r 5.23 of the Rules, the Court needs to be “satisfied” on the face of the statement of claim that an applicant is entitled to the “relief” claimed, and that the Court has jurisdiction to grant that relief, but the facts as alleged in a statement of claim are deemed to have been admitted by a respondent: Hugo Boss AG v Hardge [2024] FCA 1325 at [20] (Neskovcin J) citing Speedo Holdings BV v Evans (No 2) [2011] FCA 1227 at [23] (Flick J).

90    Moreover, and in any event, the material before the primary judge was manifestly inadequate for any assessment to be made by the primary judge as to the reasonableness of the applicants’ defence and their prospects at trial. The affidavit of Mr Johnston might have been sufficient on an application for interlocutory relief to establish that the applicants had an arguable defence, but that was not the relevant issue before the primary judge in considering whether to enter default judgment. As the primary judge informed Mr Stewart in the course of the hearing on 30 January 2025, the application was for “judgment for default, pursuant to the rules. So it’s not about summary judgment. It’s not a question about whether there’s a serious question to be tried at all.” On the other hand, the absence of an arguable case might have been more relevant to the exercise of the discretion, but that was not a contention advanced by the respondents at the hearing of the application for default judgment.

H.6.     Failure to consider lesser sanctions

91    Fifth, the applicants contend that the primary judge did not assess whether the imposition of lesser sanctions on the applicants could have achieved compliance. They submit that the primary judge did not consider whether any alternative orders under the different sub-paragraphs of r 5.23 of the Rules may have been appropriate or would have been sufficient. The applicants submit, citing Shepherd at [178], that a decision to enter default judgment has to be exercised having regard to the full spectrum of the procedural tools available, and default judgment is not the sole remedy for delay.

92    For the reasons advanced at [78]-[80] above, the exercise of discretion pursuant to r 5.23 of the Rules was not conditional on any specific consideration of the “full spectrum of the procedural tools available”.

H.7.     Conclusion

93    For the reasons set out above, none of the contentions advanced by the applicants in support of proposed ground 2, either individually or collectively, are reasonably arguable and, therefore, there is not sufficient doubt to justify leave to appeal being granted to advance that appeal ground.

I.     Substantial injustice

94    The entry of default judgment in substantial sums against the applicants without a hearing on the merits does give rise to substantial injustice, but that injustice must be assessed against and tempered by the interests of justice in speed, efficiency and the minimisation of delay and expense, that are equally essential to the just resolution of proceeding, as explained in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 at [98] and [114] (Gummow, Hayne, Crennan, Kiefel and Bell JJ), and as enshrined in the overarching principles, purposes and objectives enshrined in s 37M and s 37N of the FCA Act. On balance, we accept that if leave to appeal were refused, substantial injustice would result if the decision in respect of which leave to appeal was sought was wrong.

95    We also accept that in the usual course where the effect of the interlocutory orders from which leave to appeal is sought determines the whole of the proceeding, a prima facie case exists for the grant of leave, and that leave should readily be granted: Ex parte Bucknell (1936) 56 CLR 221 at 225 (Latham CJ, Rich, Dixon, Evatt and McTiernan JJ) and Samsung at [33].

96    Each case, however, must be addressed on its merits and in the specific context of the circumstances before the judge at first instance and the matters to which the judge had regard in exercising the discretion to enter default judgment pursuant to r 5.23 of the Rules. In circumstances where the practical effect of the interlocutory orders determines the whole of the proceeding, a more rigorous and exacting approach should be applied to the question of whether the decision of the first instance judge is attended with sufficient doubt to warrant a grant of leave to appeal. In our view, an appellate court should satisfy itself that the proposed grounds of appeal are at least not reasonably arguable before making any determination that leave to appeal should not be granted, where the practical effect of the interlocutory orders is to determine the whole of the proceeding, and where there is substantial injustice: see generally, Shakira v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 848 at [19] (Wigney J); ARX18 v Minister for Home Affairs [2020] FCA 1351 at [26] (Murphy J).

97    The “attended with sufficient doubt” and “substantial injustice” considerations, as explained in Décor and subsequent authorities, are cumulative and both must be satisfied. As we have concluded above that the proposed appeal grounds do not disclose that the discretionary decision of the primary judge is attended with sufficient doubt, in the sense of being not reasonably arguable to warrant its reconsideration on appeal, the application for leave to appeal must be refused.

J.     Disposition

98    The application for leave to appeal is to be dismissed, and the applicants are to pay the costs of the respondents, as taxed or agreed.

Associate:

Dated:    3 September 2025